Defendant ELIHU ROMANOFF (ROMANOFF) moves, by order to show cause, to set aside and vacate this Court's April 13, 2010 order, by which the Court sua sponte substituted as plaintiff in this action, DAVID COHEN as personal representative of the Estate of SAMUEL P. COHEN (COHEN), deceased, nunc pro tunc to April 19, 2009. April 19, 2009 was the day prior to when defendant ROMANOFF moved to vacate the default judgment against him in the instant action. ROMANOFF's motion to vacate the subject default judgment and dismiss this action was granted on July 10, 2009, upon plaintiff's default in appearing. The Court, on September 25, 2009, denied plaintiff's order to show cause to vacate his July 10, 2009 default and dismissal of the instant case. Further, in my April 13, 2010 decision and order, published on-line by the Official State Reporter, at 27 Misc 3d 1208 (A), I denied plaintiff's motion for leave to renew or reargue my September 25, 2009 default. The net effect of this protracted litigation is that plaintiff's default in appearing to oppose vacating the default judgment remains, the judgment against defendant ROMANOFF is vacated and the instant action is dismissed. [*2]

However, in the order to show cause now before the Court, defendant ROMANOFF objects to the Court's substitution of decedent COHEN's son as personal representative of decedent COHEN's estate and being substituted as plaintiff. In my April 13, 2010 decision, at *3, I held:

The Court is faced with a threshold issue of whether the

failure to substitute plaintiff's estate for the decedent-plaintiff

precluded the Court from determining defendant's motion, made

on April 20, 2010, to vacate his default. (See Wisdom v Wisdom,

111 AD2d 13, 14 [1985)]. This instant action was commenced on

January 7, 1997. On May 9, 1997, a default judgment was entered

in favor of plaintiff and against defendant. It is undisputed that

COHEN died in November 1997 and plaintiff's son, DAVID

COHEN, was appointed in 1998 as personal representative of his

estate. When a cause of action continues after the death of a party,

the death of a party stays the action pending the substitution of a

legal representative for the estate. (CPLR § 1015). The Court is

divested of jurisdiction to act rendering any determination made

without such a substitution. (Matter of Einstoss, 26 NY2d 181

[1970]). "A motion for substitution may be made by the successors

or representatives of a party or by any party." (CPLR § 1021).

However, CPLR§ 1015 (a) provides the "[i]f a party dies and

the claim for or against him is not thereby extinguished the court

shall order substitution of the proper parties." Therefore, pursuant to

CPLR § 1015 (a), the Court has the authority to sua sponte order

the substitution of the personal representative of decedent's estate

as plaintiff. (See Paul v Ascher, 106 AD2d 619, 621 [2d Dept 1984]).

Further, "where a party's demise does not affect the merits of the

case, there is no need for strict adherence to the requirement that

the proceedings be stayed pending substitution." (Paterno v CYC,

LLC, 46 AD3d 788 [2d Dept 2007]). Therefore, DAVID COHEN,

as personal representative of the Estate of SAMUEL P. COHEN,

deceased, is substituted as plaintiff in the instant action, nunc pro

tunc to April 19, 2009, the day prior to defendant ROMANOFF's

making of his motion to vacate the subject default judgment. The

caption in the instant action is amended to:

_____________________________________________

DAVID COHEN, as Personal Representative of the

Estate of SAMUEL P. COHEN, deceased,

Plaintiff,

-against-Index No. 626/97 [*3]

ELIHU ROMANOFF,

Defendant.

_____________________________________________

The Court relied upon CPLR § 1015 to substitute the plaintiff, because the judgment obtained by COHEN against ROMANOFF was granted prior to COHEN's death and with COHEN's death the judgment "is not thereby extinguished." The Court did not find ROMANOFF prejudiced by this substitution and COHEN's demise did not affect the merits of the case. Defendant ROMANOFF's papers in support of the instant order to show cause are unpersuasive.

It appears that the instant order to show cause is nothing more than an attempt to provide defendant ROMANOFF with an insurance policy against the possibility that the Appellate Division, Second Department will reverse my July 10, 2009 decision and order, which granted ROMANOFF's motion, upon plaintiff's default, to: vacate defendant ROMANOFF'S default; dismiss the action for lack of personal jurisdiction over defendant; and, set aside a garnishment notice and information subpoenas served

upon defendant by plaintiff's counsel.

Accordingly, it is

ORDERED, that defendant ELIHU ROMANOFF's order to show cause, to set aside and vacate this Court's order of April 13, 2010, by which the Court sua sponte substituted as plaintiff in this action, DAVID COHEN as personal representative of the Estate of SAMUEL P. COHEN (COHEN), deceased, nunc pro tunc to April 19, 2009, is denied.

This constitutes the Decision and Order of the Court.

ENTER

______________________________HON. ARTHUR M. SCHACK

J. S.C.